Monday, May 31, 2010

Since Republican Senate nominee Rand Paul questioned whether, on constitutional grounds, he would have voted for Title II of the Civil Rights Act of 1964, he has been subjected to a barrage of historically-minded criticism. Paul's critics have expressed doubts about the nominee's professed endorsement of the goal of Title II, which was to guaranty equal access to many public accommodations without regard to race, color, religion or national origin. To them, his claim (which he later tried to retract) that he was simply questioning Title II as a means of accomplishing this result, while endorsing anti-discrimination as an end, rings hollow. Indeed, it seems to echo statements made during the 1960s by people who opposed any form of racial equality, and by those who sought to give them political and intellectual cover. Much of the criticism levied at Paul, however, downplays the history that led to the enactment of Title II, which raised serious questions about the constitutionality of a broad federal public accommodations law, even in the minds of racial liberals.

Title II was preceded by the sit-in movement of the early 1960s, which caused many Americans of egalitarian racial beliefs to sympathize with the point of view that got Rand Paul into so much trouble. During the sit-ins, young people entered restaurants and other public accommodations, and refused to leave when they were denied service, causing the proprietors to invoke apparently race-neutral trespass laws (rather than segregation statutes) to eject them. The sit-in protesters claimed that to refuse them service in an institution otherwise open to the public was a denial of their basic humanity as American citizens. The proprietors took the position that Paul seemed to endorse, that their basic rights as property owners allowed them to refuse service to anyone they pleased. Which side was correct? Predictably, white racists sympathized with the proprietors, but others did as well.

The justices of the Supreme Court, the majority of whom sympathized with the objectives of the sit-ins, struggled for years to avoid ruling that the Fourteenth Amendment protected the protesters. This was true even though the justices had had little trouble ordering the desegregation of many public institutions during the 1950s, and had also extended the non-discrimination mandate to some private entities. The reason was summed up in an opinion by Justice John Marshall Harlan, himself the grandson and namesake of the justice who had dissented from the Court's infamous ruling in Plessy v. Ferguson, and from its invalidation of the first federal public accommodations law. "An individual's right to restrict the use of his property," wrote Justice Harlan, "lies beyond the reach of the Fourteenth Amendment."

When President Kennedy sent his civil rights legislation to Congress in 1963, one question naturally arose: If the Supreme Court had sent strong signals that it was not prepared to extend the Fourteenth Amendment to restaurants, lunch counters and similar establishments, what gave Congress the constitutional power to act? Later Court decisions would clarify this issue, but its solution was not clear to many racially liberal Americans at the time. While many Northern states and cities had public accommodations laws on the books, a federal law in this area proved so controversial that the administration did not even include a provision covering that subject in its initial civil rights proposals. What broke the logjam were the Birmingham demonstrations in the spring of 1963, which finally convinced many whites outside the South that the once controversial claim of the sit-in protesters should take precedence over the claims of the proprietors.

After Birmingham, the administration proposed what would later become Title II, but concerns about its constitutionality still shaped the debate in Congress, even among professed liberals. Strong supporters of anti-discrimination favored a broad public accommodations law based on the Fourteenth Amendment. But many of them conceded that such a provision might be unconstitutional, given the signals that the justices were sending about the scope of that amendment. Moderate liberals wanted to ground the bill in Congress's power to regulate interstate commerce, but they believed that such a bill might not cover many businesses that had provoked the sit-in protests-those with a limited connection to the interstate movement of goods and services. Attorney General Robert Kennedy himself cautioned that an overbroad public accommodations bill would make "a private business" into "an instrument of the State." Administration lawyers tiptoed around the question of Title II's constitutionality, finally lodging it in the Commerce Clause.

Thus, it is a mistake to assume that anyone who, for constitutional reasons, would have paused at the prospect of voting for Title II was simply an opponent of racial equality. Defenders of white supremacy often fed into this tendency by offering specious constitutional objections to Title II, and to the statute more generally. Some of these objections have been invoked in the recent debate over Paul's use of history. But it is also true that the strongest advocates of a broad federal public accommodations law tended to downplay any constitutional issues. Indeed, Kennedy and others in the Justice Department worried that this tendency would produce a bill that would eventually be invalidated by the courts. By 1964, many supporters of Title II simply felt that it was the right thing to do, as did most Americans. At that moment, to speculate about the constitutionality of the bill would simply bolster the cause of those who would employ any argument-good or bad-to block it.

If there is a problem with Rand Paul's statement, it is not in what he said but rather the context in which he said it. What he said, or at least implied, is basically correct: that, in 1963 or perhaps even in 1964, a racially egalitarian member of Congress might have had qualms about the constitutionality of a federal public accommodations law. That problem had no easy solution, and liberals realized it at the time. But to make that statement as a candidate for the Senate at a time when those particular constitutional questions have long been settled-as most such questions are-in the court of public opinion, raises suspicions that he is speaking more about the present than the past. This is particularly true given that Paul has been identified with the Tea Party-a political movement that makes constitutional objections to federal legislation a centerpiece of its reason for being. The main questions that Rand Paul's statement raises have more to do with the politics of 2010 than they do with the history of the 1960s.

Memorial Day was originally known as Decoration Day because it was a time set aside to honor the nation's Civil War dead by decorating their graves. It was first widely observed on May 30, 1868, to commemorate the sacrifices of Civil War soldiers...

Comparativism is not only a means for political change, but also a heuristic tool for the legal historian within explanatory contexts. The comparability of the Islamic and Jewish legal systems in the medieval period is a typical case for comparative legal history repeatedly mentioned both by legal historiographers and by scholars of religious studies. Our aim is to examine the comparability of these legal systems in the light of modern comparative theories and methodologies: What makes these legal traditions comparable? Is it the theological proximity, the factual transplantations or perhaps the jurists' jurisprudential self-understandings? Our test case will be one of the debated topics in legal philosophy at that time - the legitimacy of legal reasoning in interpreting legal sources and analogizing novel cases to known rulings. Our analysis of the attitudes towards this problem and in relation to theological principles and legal theories in the Islamic and Jewish legal context will revalue the applicability of current comparative theories in a pre-modern and non-western scene.

"addressed to the mind accustomed to believe that it is the business of courts to sit in judgment on the wisdom of legislative action. Courts are not the only agency of government that must be assumed to have capacity to govern."

Ancient history? Until recently one would have thought so....But now those pre-1937 decisions of the Court do not look so dusty. Once again we have headstrong conservative justices on the Supreme Court, eager to impose their vision of governance. In a suit that will reach the Court in a year or two, Republican state attorneys general are challenging the recently enacted health care law as beyond federal power: a claim reminiscent of the rationale of the decisions before 1937.

Lewis writes that "the justice who set the Court on its radical turn to the right is Antonin Scalia, the subject of Joan Biskupic’s fascinating biography, American Original." In contrast, "John Paul Stevens, who is about to retire after thirty-five years on the Supreme Court, is at the opposite pole from Scalia as a judge."

Elaine Tyler May's new book AMERICA AND THE PILL: A History of Promise, Peril, and Liberation is reviewed in the Washington Post. The book's release coincides with the 50th anniversary of the Pill's FDA approval. Ashley Sayeau writes: "at just over 200 pages, the book is as compact and powerful as the pill." The pill gave women needed control over their lives, and it became the most popular form of birth control in the United States.

"When the oral contraceptive arrived on the market, its champions claimed that the tiny pill promised to end human misery and eradicate the causes of war by controlling population." This ambition led to the messy business of separating humanitarians who were truly concerned about world poverty from politicians and corporations (and, shamefully, [Margaret] Sanger herself to an extent) who wanted to use eugenics to weed out "undesirables." Smaller, wealthier families were considered a plus for the Cold War fight against communism as they bolstered capitalism by buying more consumer goods. The pill was further promoted as a key ingredient to happy, nuclear families, and women were expected to use it despite many concerns about negative side effects.

The Nation carries an essay by Thomas Sugrue, based on his new book Not Even Past: Barack Obama and the Burden of Race. Also in The Nation, Nicholas Guyatt discusses The Making of African America: The Four Great Migrations by Ira Berlin, and The Political Worlds of Slavery and Freedom by Steven Hahn.

Saturday, May 29, 2010

*Calling the Law into Question: Confronting the Illegal and Illicit in Public Arenas *Issue Number 113

The *Radical History Review* is planning a special issue that explores how historians, activists, curators, historic site and museum administrators, as well as other creators and managers of historical content, address public audiences around issues of the illicit or the illegal. With the goal of "calling the law into question," the editors seek research-based and reflective pieces that examine how engagement with histories of the illicit or the illegal can challenge normative representations of how laws and moral customs have been constructed, upheld, and discursively supported. We seek contributions that examine why publicly engaged work should confronthistories of the illegal and illicit, which many people would rather avoid, ignore, or forget. We are also interested in how publicly engaged work can explore the social and cultural contexts that define and police what is illegal or illicit, in a manner that provokes different publics to rethinkhow these categories are created.

We are especially interested in submissions that address museum exhibits, documentary films, websites, art, or writings intended for audiences outside of academia. This special issue offers opportunities both to take stock of the issues public historians, activists, and public scholars face in terms of audience, funding, and institutional support, when they choose to engagewith histories of the illicit/illegal, and also to evaluate successful and unsuccessful examples of work - in terms of influence, financial and institutional support, and critical and popular reception - that have been created to this end.

Examples of possible topics include:

Representation of criminality and vice in neighborhood and local public history projects as well as in crime and vice tourism

Local/regional/national museums that focus on the history of law enforcement

Museological displays that address war crimes (e.g. the War Remnants Museum in Ho Chi Minh City) or conscientious objectors/"draft dodgers"

Challenges posed by public history tours of former prisons and places of incarceration

Public commemorations that intersect with histories of unlawful actions

The challenges of engaging public audiences around "illegal" migration and the maintenance of territorial sovereignty

Public protest or public art questioning the moral and/or cultural validity of religious laws and conventions

Conflicts over the inclusion of materials depicting violence or sexual content in public projects aimed at children and youth

Museums and public history sites that contextualize international law and the maintenance of human rights

Examinations of how the history of oceanic piracy has been portrayed in public arenas

Web-based challenges to copyright and intellectual property laws, and public defenses of such practices

Exhibits and other public displays aimed at supporting or discounting reproductive rights

Public exhibits that address the use of banned substances (contemporary and historical)

Explorations into how liberation narratives (such as gay liberation) offer progressive histories of overcoming the stigma of being illicit or illegal, at the expense of examining historical complexities

Analyses of when and how do formerly illegal acts become (publicly sanctioned) icons of national culture? (Capoeira in Brazil is one example)

Examinations of the challenges of securing funding and institutional support for public projects that engage histories of the illicit/illegal

Because the *Radical History Review* publishes material in a variety of forms, the editors will consider abstracts for scholarly research articles as well as proposals for relevant photo essays, artwork, reviews (exhibit/film/web/book), interviews, discussions between scholars and/oractivists, teaching reflections, and annotated course syllabi. Furthermore, the editors encourage submissions that "call the law into question" in the full range of geographic locations and eras.

*By September 1, 2010*, please submit a 1-2 page abstract summarizing the article or other contribution you wish to submit tocontactrhr@gmail.com with "Issue 113 abstract submission" in the subject line. By October 15, 2010 contributors will be notified whether they should submit their piece in full. The due date for solicited, complete articles for blind peer review isMarch 1, 2011. Articles that are selected for publication after the peer review process will appear in volume 113 of Radical History Review, which is scheduled for Spring 2012. Note: for artwork to be considered, please send low-resolution digital files (totaling less than 2 MB in size) tocontactrhr@gmail.com (also with "Issue 113 abstract submission" in the subject line). If chosen for publication it will be required that you send high-resolution image files--JPG or TIF files at a minimum of 300 dpi--along with permissions to reprint all images.

Friday, May 28, 2010

The American Journal of Legal History has decided to establish a web site to raise its public profile; provide information to potential and current authors, subscribers, and advertisers; and increase access to its issues.Accordingly, the Journal now seeks an Associate Editor for Electronic Content.In addition to designing, launching, and maintaining the Journal's web site, the AEEC will be responsible for expanding the Journal's internet footprint by working with such entities as ExpressO and SSRN.

Persons interested in applying for the position should send an expression of interest (including a resume or summary of relevant experience) to Professor Robert M. Jarvis, the chair of the Journal's Advisory Board, at jarvisb@nsu.law.nova.edu.For an example of the type of web site that the Journal has in mind, please see this site. Like most academic journals, the American Journal of Legal History does not compensate its editors but does reimburse reasonable expenses that are not absorbed by the editor's home institution.

About the Journal:The American Journal of Legal History is a peer-reviewed, peer-edited quarterly founded in 1957 by Professor Erwin C. Surrency, a leading figure in the development and promotion of legal history as a subject of study in United States law schools.The Journal is published by Temple University's Beasley School of Law and is currently edited by Mr. Lawrence J. Reilly of Philadelphia.The Journal's Advisory Board consists of a mix of prominent lawyers, judges, and academicians.

Earlier this year, the Journal began publication of its 50th volume with a biography of John B. West (the founder of the West Publishing Company); an essay on the brief (1745-56) but contentious tenure of Dr. Hugh Baillie as judge of the Irish Admiralty Court; and an article examining the administrative underpinnings of the Indian Removal Act of 1830.Works appearing in the Journal are accessible through Hein Online, Lexis, and Westlaw.

The Legal Studies Group of the British Association for Canadian Studies announces the seminar, In Search of the Sources: Canadian Legal History in British Collections, to be held at Canada House, London, 24th June 2010, 14:00 - 17:00. Here’s the announcement:

The historical development of Canada, from colonies to nation, means that many of its most important early historical sources reside in British repositories. An examination, or in some cases a re-examination, of these materials is essential to a proper understanding of the Canadian past. It is evident, however, that in many important areas, Canadian writers have not had access to, or known of, these essential source materials, scattered as they are across the collections of a number of institutions of which the relevance is not always obvious. The seminar will bring together archivists and researchers to identify and explore these hidden sources, to evaluate how they relate to each other, their uses in research, and the methodological issues arising from their use. It aims to promote and enhance the use of Canadian sources of legal history in British Collections and to build links between interested archivists and researchers.

In March 2009, the faltering insurance behemoth AIG sparked national outrage when it announced a payment of $165 million in executive bonuses after receiving more than $170 billion in bailout money from the U.S. Treasury. President Obama expressed his personal indignation in a public statement, emphasizing "the need for overall financial regulatory reform." Is this merely an anecdote, a unique case that requires a tailored solution, or a symptom of a more fundamental deficiency? The recent economic crisis showcased some of the main deficiencies of existing regulatory systems, and rekindled the debate on the importance and scope of regulation in general, and of financial services regulation in particular. Against this backdrop, insurance - one of the main pillars of the financial services sector - merits special attention, because it remains the only financial industry in the United States not regulated on the federal level.

The Article unveils the inherent weakness of regulation on the state level, and advocates cautious federal intervention. But unlike previous studies, it uses an interest-group theory with a strong comparative bent. An interest-group theory is premised on the idea that regulation provides a mechanism through which well organized interest groups can influence the distribution of economic rents in an industry. Presumably, insurance regulation is no different. In addition, the state system of insurance regulation in the United States makes the use of foreign experience incomparably valuable, because in the absence of federal intervention individual states operate much like small foreign economies. The vast foreign experience, despite its great value to American scholars and policymakers, is usually inaccessible due to language barriers. This Article aims to lift at least one barrier and to enrich scholarly and political discourse with timely and highly pertinent insights.

Two books recent books take up the topic of political slander and free speech in 18th-century France: The Devil in the Holy Water, or, The Art of Slander from Louis XIV to Napoleon, by Robert Darnton (Harvard University), and Policing Public Opinion in the French Revolution: The Culture of Calumny and the Problem of Free Speech, by Charles Walton (Yale University).

Lynn Hunt recently reviewed both for the London Review of Books. Here are the first two paragraphs of her essay:

There is no doubt an art of political slander, as Robert Darnton terms it, and in many places something like what Charles Walton calls a ‘culture of calumny’. But in what ways are they particular to a time and place? How different, for example, are the charges of lesbianism and Machiavellian manoeuvring levelled against Hillary Clinton from those published two centuries earlier against Marie Antoinette (leaving aside for the moment the rather different outcomes for the two women)? True, Hillary was not accused of committing incest with her child, but she was linked with various financial scandals and even portrayed as ordering the murder of the deputy White House counsel Vince Foster (who committed suicide in 1993) in order to cover up her transgressions. John Knox was surely right to label his 1558 diatribe against powerful women only The First Blast of the Trumpet against the Monstrous Regiment of Women, so well developed is the tradition of denigrating women thought to exercise influence from behind the throne.

The particularity of slander matters because Darnton and Walton hang a great deal on its late 18th-century French version. Darnton argues here, as he has in a series of acclaimed books, that the libels proliferating like kudzu in the 1770s and especially the 1780s choked off the oxygen of legitimacy necessary to the survival of the monarchy. He endorses Pierre Bayle’s remark of the late 17th century that ‘the tongue and the pen of one man alone are sometimes more useful for a cause than an army of 40,000 soldiers,’ though Darnton has in mind not one man but a few handfuls of hacks. Walton, a student of Darnton’s, wants to push the effects of calumny further into the heart of the French Revolution. For him, the culture of calumny explains the violence of the Terror.

The Exeter Centre for Legal History Research has announced its inaugural annual lecture. It is “Revolting Law - Revolting Law Teachers? The Struggle to Render Law a Subject Fit for University Education,” and it will be given by Professor David Sugarman, Lancaster University, on Wednesday, June 23, at 6 pm in the Moot Room, Amory Building, University of Exeter. A wine reception follows. All are welcome.

Wednesday, May 26, 2010

[We don’t systematically canvass for job notices, but this one, which apparently only recently went up was on H-Net, seems worth a post.]

The George Washington Forum on American Ideas, Politics and Institutions at Ohio University invites applications for a one-year postdoctoral fellowship in U.S. legal and constitutional history, which is funded by a grant from the Thomas W. Smith Foundation. The fellowship pays a salary of $40,000 and includes standard health insurance and retirement benefits. The successful applicant will be expected to teach a two-course survey of American constitutional history and two other courses in his or her field. Ph.D. required by September 2010.

Send a letter of application, c.v., and three letters of recommendation to Dr. Robert G. Ingram, Director, The George Washington Forum on American Ideas, Politics and Institutions, Department of History, Bentley Annex 415, Ohio University, Athens, OH 45701-2979.

Review of applications will begin on 7 June and continue until the position is filled. Ohio University is an AA/EOE and encourages women and minorities to apply. The successful candidate will be required to complete Employment Eligibility Verification Form I-9 of the U.S. Citizenship and Immigration Service.

Conversations about the legal implications of the BP oil spill, combined with Dan's post on environmental law aficionado Richard Lazarus, prompted me to wonder about the subfield of environmental legal history. I was aware of James Willard Hurst's famous study of the Wisconsin lumber industry (including its environmental consequences), and I had read some historical work on riparian rights and environmental nuisances, but I was sure there must be more out there. Some quick searching turned up lots of new scholarship:

Surveying the landscape from the end of World War II to Earth Day 1970, Brooks traces a dramatic shift in Americans’ relationship to the environment and the emergence of new environmental statutes. He takes readers into legislative hearing rooms, lawyers’ conferences, and administrators’ offices to describe how Americans forged a new body of law that reflected their hopes for rescuing the land from air pollution, deforestation, and other potential threats. For while previous law had treated nature as a commodity, more and more Americans had come to see it as a national treasure worth preserving.

Brooks explores the way key features of the New Deal’s legal legacy influenced environmental law. This path-breaking environmental history examines how cultural, intellectual, and economic changes in postwar America brought about new solutions to environmental problems that threatened public health and degraded natural aesthetics. Visiting riverbanks and freeways, duck blinds and airsheds, Before Earth Day reveals the new strategies and efforts by which the unceasing process of legal change created environmental law. And through real-world examples—how Los Angelenos pressed cases about water and air quality, how an Idaho lawyer helped clients pursue new environmental regulations, how citizens challenged government and corporate plans to dam rivers—Brooks demonstrates that key changes in property, procedure, contract, and other legal rules in those early years stimulated the national environmental laws to come.

Keith Hirokawa offers a thoughtful review in the March 2010 issue of Reviews in American History.

This article explores overlooked historical material relating to Victorian-era experimentation with the quintessentially modern regulatory concept of integrated pollution control (IPC), and the wider challenges that this poses for current understanding of the historical development of environmental law in Britain and countries influenced by it. The focus is on the Alkali Acts 1863-1906, which regulated large-scale industrial pollution within the World's first industrial nation for over two centuries of dramatic change, prior to the enactment of the IPC regime contained in Part I of Environmental Protection Act 1990 and subsequent EU-inspired reforms. No one could seriously dispute that existing industrial pollution control provisions represent, on paper at least, a considerable advance on the ageing Alkali Act regime, contributing in particular to integration at a variety of noteworthy levels. What is less clear is how groundbreaking recent regulatory developments in this field are when viewed from a broader historical perspective. In tracing IPC back to Victorian-era legislation enacted between 1863 and 1881 addressed to the problem of chemical industry pollution, the analysis below challenges the modernity of this leading regulatory concept, highlighting levels of sophistication in environmental law and policy during the early stages of industrialisation which many scholars today around the world would consider inconceivable. What were the characteristics of ‘Victorian IPC’? Who were the main protagonists responsible for its introduction? And, crucially, why was early innovation not sustained (to the point that it became lost to the architects of IPC today)?

The California redwoods have long been the subject of conflict, but after 1970 the fights were transformed when citizens leveraged the courts to challenge California's corporatist timber regime, with its focus on timber production. The history of the legal campaign highlights the need to focus on local aspects of modern environmental history. Unlike the typical narrative about the nationalization and professionalization of modern environmental politics, the redwood battles reveal persistent insurgence, intense local activism, and the breakdown of a corporatist, production-focused governance tradition. The history of the legal fights over the redwoods also points to the national consequences, most of them unintended, of the local activism. The current literature prioritizes litigation efforts that enforced and clarified particular aspects of the modern environmental protection regime, not litigation that transformed governance. This essay focuses on the eight most important cases in the movement to reform California forestry governance. Because the local citizens' movement set its sights on the transformation of institutions, increased regulation of private property, and giant redwoods, it led to, and was part of, one of the most important environmental battles of the late twentieth century.

Contemporary public policy circles are quick to acknowledge that environmental factors contribute to ill health and pose a particular threat to poor and minority communities. But public officials rarely examined the distribution of environmental hazards such as polluted air and contaminated water. In the 1980s, as toxic waste facilities proliferated, the environmental justice movement demanded that impoverished communities no longer be burdened by excessive environmental risks.

In Transforming Environmentalism, Eileen McGurty explores a moment central to the emergence of the environmental justice movement. In 1978, residents of predominantly African American Warren County, North Carolina, were horrified to learn that the state planned to build a landfill in their county to hold forty thousand cubic yards of soil that was contaminated with PCBs from illegal dumping. They responded to the state's plans with a four-year resistance, ending in a month of protests with over 500 arrests from civil disobedience and disruptive actions.

McGurty traces the evolving approaches that residents took to contest "environmental racism" in their community and shows how activism in Warren County spurred greater political debate and became a model for communities across the nation. Transforming Environmentalism explores how the specific circumstances of the Warren County events shaped the formation of the environmental justice movement and influenced contemporary environmentalism.

Douglas's ideology about nature evolved from his time as a boy in the Cascade Mountains to his retirement from the Supreme Court in 1975. Over the course of several decades, Douglas moved from an aesthetic appreciation of nature, to combating development and pollution and connecting social justice issues with environmental ones. Certainly, many of Douglas's views were hardly novel to the conservation movement. Sowards makes the important point that Douglas's position, however, yielded an authority many environmentalists lacked. In addition, he vocally advocated for a higher level of democracy with the decision-making process with natural areas, something later incorporated into law.

Sowards also investigates the impact of Douglas's environmental views on his written opinions as a justice of the Supreme Court. Overall, Sowards states that Douglas certainly raised awareness with his writings and activism, but his legacy as a justice is mixed. His opinions reflected his overall views of nature and the importance of public participation, but dissents rarely set legal precedent. Interestingly, and more vividly than through his activism or writings, Douglas's legal opinions show his ability to connect social and environmental ills, foreshadowing the environmental justice movement.

examines how skilled Mountain West railway workers in Canada and the United States incorporated environmental problems into their work culture. Through experience they developed methods of predicting snow slides and embraced customs that compelled them to work even under the most dangerous conditions. These informal practices, rather than written work rules, guided the decisions they made to offset risk for both their co-workers and train passengers. I argue that living and working in Avalanche Country meant railway workers gained an intimate knowledge of their natural surroundings that clashed with accepted corporate and legal interpretations that saw slides as unforeseeable acts of God. Comparing three avalanche disasters in two countries provides persuasive evidence that occupation and experience influence notions of risk. Importantly, the significance of my argument lies in its refusal to see industrial workers as detached from nature and for what it suggests about workers in other places and occupations who also likely developed job-specific practices in response to environmental dangers.

Rarely have legal histories peered into the latrines of the 19th and 20th century. Fortunately, the view from within Jamie Benidickson’s book, THE CULTURE OF FLUSHING: A SOCIAL AND LEGAL HISTORY OF SEWAGE, is informative and quite comprehensive. A reader looking for a full examination of the social and legal history of sewage in Canada, the United States and the United Kingdom will find it in this volume. Benidickson moves through 200 years of sewage history by focusing on key developments in our attitude and treatment of sewage in major urban centers, including Toronto, New York, Chicago, and London. He chronicles the early history of neglect and the prevailing attitude of streams as “nature’s sewers” and how water came to become an acceptable medium for disposing urban and industrial waste. With clarity and insight, Benidickson traces the major court battles, and legislation culminating in the Clean Water Act of 1972. Each step in the murky legal and cultural history of waste disposal, including the legislative attempts, the arguments made in court, the judicial opinions issued at various stages of ongoing litigation is clearly summarized. The author also puts this legal history in the larger context of environmental degradation, national legislation, and changing cultural attitudes and norms of collective responsibility.

Last, I noticed that Douglas Harris (University of British Columbia) teaches an entire course on Environmental Legal History. The diverse set of readings includes excerpts from James Scott, Seeing Like a State; Carol Rose, Property and Persuasion; William Cronin, Changes in the Land; and - one of my favorite children's authors - Roald Dahl, Danny the Champion of the World.I'm sure that Harris and others know much more about the state of this subfield, so I encourage comments.

This Essay explores the implications for constitutional history of several documents I found in the archives of Supreme Court Justices William O. Douglas, William J. Brennan, Jr., Thurgood Marshall, Potter Stewart, and Harry Blackmun. In particular, I discuss (1) portions of an early draft of Justice Douglas’s opinion in the 1972 vagrancy case of Papachristou v. City of Jacksonville; (2) memoranda from Justices Brennan and Stewart about that opinion; and (3) memoranda between Justices Brennan and Douglas about Roe v. Wade. These documents—which I have reproduced in an appendix—shed new light on several apparently disparate issues in constitutional law: the Supreme Court’s use of void-for-vagueness doctrine; the social and constitutional history of vagrancy law; the possibility and contours of constitutional regulation of substantive criminal law; the relationship between Papachristou and Roe; and the development and conceptualization of substantive due process. These documents invite us to think both more deeply and more broadly about who was engaged in constructing the intellectual framework of modern fundamental rights, about where in the constitution such rights would be located, and about what the contours of such rights would be.

Law's Imagined Republic shows how the American Revolution was marked by the rapid proliferation of law talk across the colonies. This legal language was both elite and popular, spanned different forms of expression from words to rituals, and included simultaneously real and imagined law. Since it was employed to mobilize resistance against England, the proliferation of revolutionary legal language became intimately intertwined with politics. Drawing on a wealth of material from criminal cases, Steven Wilf reconstructs the intertextual ways Americans from the 1760s through the 1790s read law: reading one case against another and often self-consciously comparing transatlantic legal systems as they thought about how they might construct their own legal system in a new republic. What transformed extraordinary tales of crime into a political forum? How did different ways of reading or speaking about law shape our legal origins? And, ultimately, how might excavating innovative approaches to law in this formative period, which were constructed in the street as well as in the courtroom, alter our usual understanding of contemporary American legal institutions? Law's Imagined Republic tells the story of the untidy beginnings of American law.

And the blurbs:

‘Wilf has unearthed and brought to life an entire underground culture of popular lawmaking in revolutionary America: crowds, juries, defendants, townsmen, and artisans, who ‘imagined’ the contours of a dramatically different legal system from the one they were used to, who made law in their own popular idiom and fashioned it to their own purposes. This is brilliant, original legal-cultural history, told with lucidity and grace.’ Robert Gordon, Yale University

‘Law’s Imagined Republic is a brilliant and original portrayal of the emergence of law as the focus of struggles over legitimacy during the American revolutionary era. In Steven Wilf’s hands, however, both the content and the rituals of law are being constantly contested by a mobilized populous ready to imagine different legal norms. Drawing on the rich materials of contemporary criminal trials and elaborate popular commentary through newspapers, pamphlets, and ballads, Wilf shows how legal discourse comes to occupy a central place in the American cultural imagination.’ Morton J. Horwitz, Harvard Law School

‘Steven Wilf’s Law’s Imagined Republic is a highly provocative, inventive, and fascinating analysis of the importance of the popular discourse and practice of law-making and law-interpreting during the American Revolution. His account of the centrality of popular contributions to the culture of the law in America is thoughtful and compelling, and his efforts to bridge law and literature fresh and enjoyable.’ Michael Meranze, University of California, Los Angeles

High on my list of "beautiful books" is Timothy Tyson's Blood Done Sign My Name. I first encountered Tyson's work when I read Radio Free Dixie, a biography of Robert F. Williams and an incisive study of the roots of black power. Blood Done Sign My Name is a different type of book, both a memoir and a deeply researched account of the way a racially motivated murder shook up Tyson's small North Carolina town.

150 years earlier, the legal process might have "kept the peace," to borrow Laura Edwards' phrase, but this trial disturbed it. After an all-white jury acquitted the white defendants (one of whom was the father of Tyson's boyhood friend), some residents rioted and protested. Others clung more fiercely to segregation. Tyson's father, a Methodist pastor and self-proclaimed "Eleanor Roosevelt liberal," attempted to bridge racial divides (and was thereafter encouraged to relocate). Surprisingly to many readers, this all took place in 1970, after civil rights activists had fought and won many battles.

I recently learned that a film adaptation was released earlier this year. I haven't seen it yet, but I wanted to use the opportunity to recommend the book. Although we are living through a memoir boom, it is rare to see a professional historian -- particularly a relatively junior one -- taking on a project that mixes personal history and scholarly ambition. It is rarer still to see such an endeavor turn out well. (To paraphrase New York Times critic William Grimes, we all have a life; we needn't all write about it.)

For those who like books that combine personal history and serious scholarship, I also recommend Kenji Yoshino'sCovering: The Hidden Assault on Our Civil Rights. It's a slim book that blends anecdotes from Yoshino's life as a gay, Japanese-American legal scholar with arguments about how U.S. law could better address inequality.

In contrast to the view that national immigration policy began in 1875, this article explores evidence that immigration policy dates from the early republic period. Built around the naturalization clause, which regulates the ability of aliens to own land and shaped their willingness to immigrate to America, this early republic immigration policy included strong norms of prospectivity, uniformity, and transparency. Drawing on these norms, which readily apply in both the naturalization and immigration contexts, the paper argues against the plenary power doctrine, particularly as it purports to authorize Congress to change the rules of immigration midstream and apply them to individuals who have already arrived in this country. The paper also argues against Congress’s practice of adopting private legislation. These contentions, in turn, provide the foundation for a criticism of the so-called public rights doctrine and its use to justify restrictions on the judicial role.

Monday, May 24, 2010

Interdisciplinarity was a major feature of my law school experience. I learned Property from an historian, Contracts from an economist, and Constitutional Law from a political scientist, and each professor made that expertise integral to the course. Much has been said and will be said about this “interdisciplinary turn” in legal education (see, for example, these threads on Balkinization and Prawsblawg), so I’d like to turn the conversation in a different direction. What does this mean for legal historians, present and future?

For those considering the law school world, one question is what to teach. Legal History* is not always a realistic possibility, and in almost all cases, will not alone satisfy a law school’s teaching requirements. So what other legal subjects lend themselves to an historical approach? My informal research suggests that among large first-year classes, Torts, Property, and Constitutional Law are standard fare for legal historians. In terms of electives, I’ve noticed legal historians clustering around Family Law, Trusts and Estates, Administrative Law, and Professional Responsibility (which at some schools can be taught as a history of the American legal profession). Also popular are variants of critical legal theory, comparative law, and anti-discrimination law. (I can vouch for bringing history to bear on Employment Discrimination, which I taught last fall.)

Many law schools also allow faculty to develop their own courses. Curious as to what other legal historians have come up with, I did a little digging. Here are some of my more interesting finds:

Legal historical courses on race, slavery, and civil rights are abundant. For example, at the University of Michigan, students can take advantage of a set of courses on Law in Slavery and Freedom, developed by Martha Jones, Rebecca Scott, and visitor Jean Hebrard. At the University of Virginia School of Law, Risa Goluboff teaches a seminar titled Civil Rights History from Plessy to Brown, which “recreat[es] the uncertainties that characterized civil rights doctrine in the pre-Brown era, and analyz[es] the disparate ways historians of civil rights have treated the topic.”

Two novel variations on this theme are Mary Dudziak's course on Thurgood Marshall and Civil Rights History, which she's blogged about here, and Brad Snyder's seminar (at the University of Wisconsin Law School) on Brown. During the first part of the semester, Snyder's students learn about the passage of the Fourteenth Amendment and its evisceration, traverse Jim Crow, and study the precedents that informed the Brown Court. From weeks five to eight, they cover the oral argument and read conference notes. During the rest of the course, they consider Brown’s complicated legacy. The major assignment is a re-argument of the case, with each student adopting the role of a different justice and then writing an opinion reflecting his or her justice’s views.

Law and Social Movements (or Law and Social Change) seems to be another popular legal-historical law school offering. In the version I took (from Serena Mayeri), readings included Lisa McGirr on the origins of the “new right,” Reva Siegel on sex equality, Ken Mack on civil rights lawyering, Steve Teles on the conservative legal movement, and Jane DeHart and Donald Mathews on the politics of the Equal Rights Amendment. I got the impression that students enjoyed the mix of history, theory, and litigation strategy. It looks like Lani Guinier, Harvard Law School, has offered something similar.

For my part, I’ve taught a seminar on Social Welfare and American Law, which I designed as a legal history of the welfare state. Readings included John Witt on workingmen’s compensation; Michael Willrich on progressive-era municipal experiments with "socialized justice"; Liz Cohen, Alan Brinkley, and Linda Gordon on New Deal social welfare legislation; Suzanne Mettler, Ira Katznelson, and Margot Canaday on the G.I. Bill; and Martha Davis and Felicia Kornbluh on welfare rights. For cases, I used a mix of important Supreme Court precedents (e.g., San Antonio Independent School District v. Rodriguez) and lesser-known state-level decisions (e.g., cases from different states on the validity of mothers’ pension legislation). I also included excerpts from works that have informed legal approaches to social welfare, such as Charles Reich’s “The New Property,” Michael Harrington’s The Other America, and Charles Murray’s Losing Ground.

I never thought I’d say it, but researching this post has made me long to go back to coursework. Harvard Law School offers two courses on legal history and political economy that I'd be thrilled to sit in on: a legal history seminar on the History of Economic Regulation with the legendary Morton Horwitz and a workshop on the Political Economy of Modern Capitalism, led by Christine Desan and Sven Beckert. Over at Depaul University College of Law, Allison Brownell Tirres teaches a legal history seminar on Law and Citizenship that caught my eye: it covers the founding to the present and includes readings by Linda Kerber, Rogers Smith, Dylan Penningroth, and Mae Ngai. I’d also love to take Rande Kostal’s course (University of Western Ontario) on Law Reform in the American Empire, which appears to build off his work on post-WWII U.S. legal reconstruction projects in Germany and Japan. Meanwhile, I envy the law students who have the opportunity to study Law and War, a topic with great contemporary resonance. John Witt (Yale Law School), Mary Dudziak (University of Southern California Law), and Harry Scheiber (University of California Berkeley School of Law) all teach variations.

Has anyone else come across interesting legal-historical law school courses? Do you think that an historical approach works particularly well for some legal subjects?

* For those developing legal history courses, refer back to this post for tips on finding sample syllabi.

This article recalls the fact that in Britain (and elsewhere), until the mid-19th century, neither company legislation, nor jurists or economists, envisioned companies to be private or small. Nevertheless, once freedom of incorporation and general limited liability were enacted, a new practice was set in motion. Smaller companies were formed in growing numbers, replacing partnerships, family firms and even sole proprietorships, and operated in sectors in which corporations had not been found before. These companies did not seek access to the stock markets. The article tracks the take-up pattern of the corporate form in Britain. It analyzes the reasons for the decision of businesspersons to incorporate their small firms. It examines the reactions of the courts (in the famous Salomon v. Salomon case) and of the legislature to this unpredicted practice, which emerged from the bottom up. It argues that incorporators and their lawyers used the available contractual flexibility to privately design the Articles of Association and adjust them to the specific needs of private and small companies, often by introducing partnership internal governance rules into company Articles. Eventually, in 1907, the private company was recognized by the Companies Act. The article relies on newly gathered data on the take-up of the company form and a newly produced sample of company files. It is part of a wider collaborative and comparative project that studies private limited liability companies (PLLCs) in Germany, Britain, France and the US.

Sunday, May 23, 2010

The 18th Amendment gets a new history in LAST CALL: The Rise and Fall of Prohibition by Daniel Okrent, reviewed today in the New York Times. "On Jan. 17, 1920, America went dry," David Oshinsky writes. "The 18th Amendment had been ratified a year earlier, banning 'the manufacture, sale, or transportation of intoxicating liquors' within the United States and its territories. Thus began the era of Prohibition, a nearly 14-year orgy of lawbreaking unparalleled in our history." Okrent

views Prohibition as one skirmish in a larger war waged by small-town white Protestants who felt besieged by the forces of change then sweeping their nation - a theory first proposed by the historian Richard Hofstadter more than five decades ago. Though much has been written about Prohibition since then, Okrent offers a remarkably original account, showing how its proponents combined the nativist fears of many Americans with legitimate concerns about the evils of alcohol to mold a movement powerful enough to amend the United States Constitution.

"Refreshingly accessible and deeply informed," Revolutionaries: A New History of the Invention of America by Jack Rakove "is just what you need when someone on the Internet or cable TV offers to give you the ideas about history now being offered by the Tea Party movement in exchange for those you got from well-trained teachers," David Hollinger writes in the San Francisco Chronicle. (The internet and well-trained teachers are, of course, not in separate worlds.) Hollinger continues:

The Federalist Papers an argument against a strong federal government that undercuts the policies of the Obama administration? Tea Party leader Dick Armey of Texas made this claim recently. When a skeptical reporter asked him about Alexander Hamilton, the chief author of the Federalist Papers, Armey declared that only "ill-informed professors" thought Hamilton was an advocate of a powerful national state. Ah, yes, professors.

"Revolutionaries" is written by a distinguished professor at Stanford who, unlike Dick Armey, knows the difference between a federalist and an anti-federalist....

But "Revolutionaries" is much more than a convenient inventory of truths by which the Tea Party version of the founding can be refuted. While Rakove does provide us with a cogent summary of what scholars know about the political history of the late 18th century, what gives his book real distinction is the skill with which he delivers this knowledge through a series of interlocking biographical narratives.

"How authentic can a war be when things don't blow up?" asks Jeff Stein in a Washington Post review of CYBER WAR: The Next Threat to National Security and What to Do About It by Richard A. Clarke and Robert K. Knake. "But the utility of cyber-tools in service of old-fashioned firepower ha[s] already been made clear." Nevertheless, "U.S. presidents have treated cyber-defense like spinach, picking it up and then putting it down....It will probably take 'an electronic Pearl Harbor' to wake us up, Clarke says."

POLITICS, POLICY, AND PRACTICE IN THE EARLY UNITED STATESChair: Jeff Vanke, The Historical SocietyLaura K. Inglis, University of Oxford, “To Constrain the Legislature: The Rise of Substantive Due Process in New York State”William Cochran Pruett, United States Army, “Essays and Treatises: The Use of the Book in the Artillery during the American Revolution, Theory and Practice”Michal Jan Rozbicki, Saint Louis University, “Culture and Liberty: Reexamining the American Revolution”Harold D. Langley, Smithsonian Institution, “The First Federal Public Health Program: Efforts to Care for Sick Sailors in the Antebellum United States”

DUELS AND ANTI-DUELING IN MODERN TIMES: ITALY AND AMERICA, COMPARATIVE PERSPECTIVESChair: Randolph Roth, Ohio State UniversitySteven Hughes, Loyola University, Baltimore, "Dueling after Il Duce: Postwar Conflicts of Honor in Italy"Bertram Wyatt-Brown, University of Florida and Johns Hopkins University, "Murder by Duel: Prosecutors’ Indictments in America, 1990-2009"Comment: Vernon Burton, Coastal Carolina University and the University of IllinoisComment: Christopher S. Celenza, Johns Hopkins University

"THE LONG CIVIL RIGHTS MOVEMENT": A ROUNDTABLEChair: Eric Arnesen, George Washington UniversityPatricia Sullivan, University of South CarolinaJ. Mills Thornton, University of MichiganBeth Bates, Wayne State UniversityRobert Korstad, Duke UniversityJames Leloudis, University of North Carolina at Chapel Hill

NEW DIRECTIONS IN THE HISTORY OF CIVIL RIGHTS AND RACE IN THE U.S., IChair: James Miller, George Washington UniversityThomas Guglielmo, George Washington University, “Raising a Black and ‘So-Called White’ Military: Race-Making and America's World War II Draft”Touré Reed, Illinois State University, “The Urban League in the New Deal Era”Yevette Richards Jordan, George Mason University, “George McCray and the Shifting Dimensions of a Transnational Black Identity in Newly Independent Ghana”

NEW DIRECTIONS IN THE HISTORY OF CIVIL RIGHTS AND RACE IN THE U.S., IIChair: David Chappell, University of OklahomaKevin Gerard Boyle, Ohio State University, “Redemption: Civil Rights, History, and the Promise of America”Joseph Kip Kosek, George Washington University, “‘Who Is Their God?’: Religion and the Civil Rights Movement”Sophia Z. Lee, Yale University, “Without the Intervention of Lawyers’: Race, Labor, and Conservative Politics in 1950s America”Comment: David Chappell

NEW DIRECTIONS IN THE HISTORY OF CIVIL RIGHTS AND RACE IN THE U.S., IIIChair: Steven Reich, James Madison UniversityJames Ralph, Middlebury College, “‘It is an Eternal Struggle’: The Pursuit of Civil Rights in the Land of Lincoln”James D. Wolfinger, DePaul University, “‘The American Ideals of Justice and Equality’: The African-American Fight for Equal Rights in Levittown”Kenneth Mack, Harvard Law School, “Race, Representation, and the Creation of the Civil Rights Lawyer”

Friday, May 21, 2010

Readers do not often comment on LHB posts, and one of the reasons is that registration has been required, either through Open ID or creating a Google account. But this has meant that great posts calling for comments, like Karen Tami's posts here and here, and a recent query from Emily Kadens, receive few or no comments.

To open things up a bit, I'm trying out open, but moderated, comments. This means that anyone can comment, even anonymously, but there will be a delay before posting, and spam or otherwise inappropriate comments will not be approved. Comments have to be moderated, because most comments are spam -- they're from folks seeking links to shady commercial sites on this blog and anyplace they can get it, presumably because traffic to their site enhances their business, and clicks through on their site generate revenue.

Opening up comments will generate even more spam, but will also make it easier for you. I'll spare you the technical details, but I'll try this for the next week, and see if this new set-up makes it more likely that you will join in, but also doesn't generate too many headaches on my end. If we don't hear from you, only from the spammers, I'll change the settings back again.

Please note: comments criticizing scholarship discussed on the blog are fair game, but are more likely to be approved if they are not anonymous.

The paper's title is a quotation from The University of Texas registrar nine days after the decision in Brown v. Board of Education. This paper examines 20th-century techniques of racial domination at The University of Texas by crosscutting two narratives.

The first narrative that the paper presents is one of the development of bureaucratic or institutional forms of racial exclusion. The paper describes the university's efforts to limit the application of the Brown v. Board of Education.

In the immediate years after the United States Supreme Court's decision in Brown v. Board of Education, The University of Texas developed and instituted entrance exams that university officials knew would exclude a disproportionate number of African-American applicants. Publicly, the university presented the testing as race-neutral. The university stalled post-Brown integration until the exclusionary admissions testing was in place.

An explicit concern of the university in seeking to exclude African-American students during the 1950s was a racialized sexual concern about the university's white women.

The second narrative is the story of William Stewart Simkins, a law professor at The University of Texas from 1899 to 1929. Professor Simkins helped to organize the Ku Klux Klan in Florida at the conclusion of the American Civil War, and he advocated his Klan past to Texas students.

Like the university registrar during the 1950s, Professor Simkins was explicitly concerned with the sexual defense of white women. Relying upon the analysis of historian Grace Elizabeth Hale, the paper links Professor Simkins's advocacy of the Klan to the early 20th-century history of lynching and white supremacist violence.

During the 1950s, the memory and history of Professor Simkins supported the university's resistance to integration. As the university faced pressure to admit African-American students, the university's faculty council voted to name a dormitory after the Klansman and law professor. The dormitory carries his name to the present day. During this time period, alumni also presented the law school with a portrait of Professor Simkins. Portraits and a bust of Professor Simkins occupied prominent positions within the law school through the 1990s.

The sources for the paper are drawn largely from primary materials of the university's archives, including the papers of the university's Board of Regents, Chancellor, President, and faculty committees. The author completed this research during the 1990s while a member of The University of Texas School of Law faculty.

Despite Simkins’ involvement with the Klan, the Faculty Council christened the dormitory “Simkins Hall” in 1954 — ironically, as Russell points out — five weeks after the Supreme Court’s ruling on Brown v. Board of Education.

Now, in 2010, it seems unconscionable that UT would stand behind the dorm’s name, but officials are less than excited about the prospect of a name change....

There’s a difference between being honest about our history and honoring a notorious racist with a dormitory — and it seems entirely reasonable to dishonor such a dishonorable man.

Here's coverage of this story -- and Tom's SSRN paper -- on KXAN television.